[Introduced February 11, 2005; referred to the Committee on the
Judiciary.]

A BILL to amend the code of West Virginia, 1931, as amended, by
adding thereto a new article, designated §22-27-1, §22-27-2,
§22-27-3,
§22-27-4, §22-27-5, §22-27-6, §22-27-7, §22-27-8,
§22-27-9, §22-27-10, §22-27-11, and §22-27-12, all relating to
establishing a program to encourage voluntary reclamation of
lands adversely affected by mining by limiting the liability
which could arise as a result of the voluntary reclamation of
abandoned lands or reduction and abatement of water pollution;
stating legislative purpose and intent; setting forth
legislative findings; providing definitions for applicable
terms; defining eligibility for the protections and
immunities; setting forth specific exemptions from liability
for landowners; setting forth specific exemptions from
liability for persons who provide equipment at no cost or at
cost for a reclamation project; and providing exceptions to
coverage under the proposed legislation.

Be it enacted by the Legislature of West Virginia:
That the code of West Virginia, 1931, as amended, be amended
by adding thereto a new article, designated §22-27-1, §22-27-2,
§22-27-3,
§22-27-4, §22-27-5, §22-27-6, §22-27-7, §22-27-8,
§22-27-9, §22-27-10, §22-27-11 and §22-27-12, all to read as
follows:ARTICLE 27. ENVIRONMENTAL GOOD SAMARITAN ACT.
§22-27-1. Declaration of policy and purpose.
This article is intended to encourage the improvement of land
and water adversely affected by mining, to aid in the protection of
wildlife, to decrease soil erosion, to aid in the prevention and
abatement of the pollution of rivers and streams, to protect and
improve the environmental values of the citizens of this state and
to eliminate or abate hazards to health and safety. It is the
intent of the Legislature to encourage voluntary reclamation of
lands adversely affected by mining. The purpose of this article is
to improve water quality and to control and eliminate water
pollution resulting from mining extraction or exploration by
limiting the liability which could arise as a result of the
voluntary reclamation of abandoned lands or the reduction and
abatement of water pollution. This article is not intended to limit
the liability of a person who by law is or may become responsible
to reclaim the land or address the water pollution or anyone who by
contract, order or otherwise is required to or agrees to perform
the reclamation or abate the water pollution.§22-27-2. Legislative findings.The Legislature finds and declares as follows:(1) The state's long history of mining has left some lands and waters
unreclaimed and polluted.(2) These abandoned lands and polluted waters are
unproductive, diminish the tax base and are serious impediments to
the economic welfare and growth of this state.(3) The unreclaimed lands and polluted waters present a danger to the health, safety and
welfare of the people and the environment.
(4) The state of West Virginia does not possess sufficient resources to reclaim all the
abandoned lands and to abate the water pollution.
(5) Numerous landowners, citizens, watershed associations, environmental organizations and
governmental entities who do not have a legal responsibility to reclaim the abandoned lands or to
abate the water pollution are interested in addressing these problems but are reluctant to engage in
such reclamation and abatement activities because of potential liabilities associated with the
reclamation and abatement activities.
(6) It is in the best interest of the health, safety and welfare of the people of this state and the
environment to encourage reclamation of the abandoned lands and abatement of water pollution.(7) That this act will encourage and promote the reclamation of these properties.§22-27-3. Definitions.
As used in this article unless used in a context that clearly
requires a different meaning, the term:(a) "Abandoned lands" means land adversely affected by mineral
extraction and left or abandoned in an unreclaimed or inadequately
reclaimed condition.(b) "Consideration" means something of value promised, given
or performed in exchange for something which has the effect of
making a legally enforceable contract. For the purpose of this
article, the term does not include a promise to a landowner to
repair damage caused by a reclamation project or water pollution
abatement project when the promise is made in exchange for access
to the land.(c) "Department" means the West Virginia department of
environmental protection.(d) "Eligible land" means land adversely affected by mineral
extraction and left or abandoned in an unreclaimed or inadequately
reclaimed condition or causing water pollution and for which no
person has a continuing reclamation or water pollution abatement
obligation. (e)"Eligible landowner" means a landowner that provides
access to or use of the project work area at no cost for a
reclamation or water pollution abatement project who is not or will
not become responsible under state or federal law to reclaim the
land or address the water pollution existing or emanating from the
land.(f)"Eligible project sponsor" means a person that provides
equipment, materials or services at no cost or at cost for a
reclamation or water pollution abatement project who is not or will
not become responsible under state or federal law to reclaim the
land or address the water pollution existing or emanating from the land.(g) "Landowner" means a person who holds either legal or
equitable interest in real property.(h) "Mineral" means any aggregate or mass of mineral matter,
whether or not coherent, which is extracted by mining. This
includes, but is not limited to, limestone, dolomite, sand, gravel,
slate, argillite, diabase, gneiss, micaceous sandstone known as
bluestone, rock, stone, earth, fill, slag, iron ore, zinc ore,
vermiculite, clay and anthracite and bituminous coal.(i) "Permitted activity site" means a site permitted by the
department of environmental protection under the provisions of
article two, three or four of this chapter.(j) "Person" means a natural person, partnership, association,
association members, corporation, an agency, instrumentality or
entity of federal or state government or other legal entity
recognized by law as the subject of rights and liabilities.(k) "Project work area" means that land necessary for a person
to complete a reclamation project or a water pollution abatement
project.(l) "Reclamation project" means the restoration of eligible
land to productive use by regrading and revegetating the land to
stable contours that blend in and complement the drainage pattern
of the surrounding terrain with no highwalls, spoil piles or
depressions to accumulate water, or to decrease or eliminate
discharge of water pollution.(m) "Water pollution" means the man-made or man-induced
alteration of the chemical, physical, biological and radiological
integrity of water located in the state.(n) "Water pollution abatement facilities" means the methods
for treatment or abatement of water pollution located on eligible
lands. These methods include, but are not limited to, a structure,
system, practice, technique or method constructed, installed or
followed to reduce, treat or abate water pollution.(o) "Water pollution abatement project" means a plan for
treatment or abatement of water pollution located on eligible
lands.§22-27-4. Eligibility and project inventory.(a) General rule. -- An eligible landowner or eligible
project sponsor who voluntarily provides equipment, materials or
services at no charge or at cost for a reclamation project or a
water pollution abatement project in accordance with the provisions
of this article is immune from civil liability and may raise the
protections afforded by the provisions of this article in any
subsequent legal proceeding which is brought to enforce
environmental laws or otherwise impose liability. An eligible
landowner or eligible project sponsor is only entitled to the
protections and immunities provided by this article after meeting
all eligibility requirements and compliance with a detailed written
plan of the proposed reclamation project or water pollution
abatement project which is submitted to and approved by the department. The project plan shall include the objective of the
project and a description of the work to be performed to accomplish
the objective and shall, additionally, identify the project
location, project boundaries, project participants and all
landowners.(b) Notice. -- The department shall give written notice by
certified mail to adjacent property owners and riparian land owners
located downstream of the proposed project, provide Class IV public
notice of the proposed project in a newspaper of general
circulation, published in the locality of the proposed project, and
shall give public notice in the state register. The project
sponsor may also provide public notice. Any person having an
interest which may be adversely affected by the proposed project
has the right to file written objections to the department within
thirty days after receipt of the written notice or within thirty
days after the last publication of the Class IV notice. The
department shall provide to the project sponsor a copy of each
written objection received during the public comment period, which
shall conclude at the expiration of the applicable thirty-day
period provided for in this section.(c) Advice. -- The department may provide advice to the
landowner or to other interested persons based upon the
department's knowledge and experience in performing reclamation
projects and water pollution abatement projects.(d) Departmental review. -- The department shall review each proposed reclamation project and approve the project if the
department determines the proposed project:(1) Will result in the appropriate reclamation and regrading
of the land according to all applicable laws and regulations;(2) Will result in the appropriate revegetation of the site; (3) Is not likely to result in pollution as defined in article
eleven of this chapter; and(4) Is likely to improve the water quality and is not likely
to make the water pollution worse.(e) Project inventory. -- The department shall develop and
maintain a system to inventory and record each project, the project
location and boundaries, each landowner and each person identified
in a project plan provided to the department. The inventory shall
include the results of the department's review of the proposed
project and, where applicable, include the department's findings
under subsection (b), section ten of this article.(f) Appeal. -- A person aggrieved by a department decision to
approve or disapprove a reclamation project or a water pollution
abatement project has the right to file an appeal with the
environmental quality board under the provisions of article one,
chapter twenty-two-b of this code. §22-27-5. Landowner liability limitation and exceptions.(a) General rule. -- Except as specifically provided in
subsections (b) and (c) of this section, an eligible landowner who
provides access to the land, without charge or other consideration, which results in the implementation of a reclamation project or a
water pollution abatement project:(1) Is immune from liability for any injury or damage suffered
by persons working under the direct supervision of the project
sponsor while such persons are within the project work area;(2) Is immune from liability for any injury to or damage
suffered by a third party which arises out of or occurs as a result
of an act or omission of the project sponsor which occurs during
the implementation of the reclamation project or the water
pollution abatement project;(3) Is immune from liability for any injury to or damage
suffered by a third party which arises out of or occurs as a result
of a reclamation project or a water pollution abatement project;(4) Is immune from liability for any pollution resulting from
a reclamation project or water pollution abatement project;(5) Is immune from liability for the operation, maintenance or
repair of the water pollution abatement facilities constructed or
installed during the project unless the eligible landowner
negligently damages or destroys the water pollution abatement
facilities or denies access to the project sponsor who is
responsible for the operation, maintenance or repair the water
pollution abatement facilities.(b) Duty to warn. -- The eligible landowner shall warn the
project sponsor of known, latent, dangerous conditions located on
the project work area which are not the subject of the reclamation project or the water pollution abatement project. Nothing in this
article shall limit an eligible landowner's liability which
results from the eligible landowner's failure to warn of such
known, latent, dangerous conditions.(c) Exceptions to immunity. -- Nothing in this article may
limit an eligible landowner's liability which results from a
reclamation project or water pollution abatement project and which
would otherwise exist:(1) For injury or damage resulting from the landowner's acts
or omissions which are reckless or constitute gross negligence or
willful misconduct.(2) Where the landowner accepts or requires consideration for
allowing access to the land for the purpose of implementing a
reclamation project or water pollution abatement project or to
operate, maintain or repair water pollution abatement facilities
constructed or installed during a water pollution abatement
project.(3) For the landowner's unlawful activities.(4) For damage to adjacent landowners or downstream riparian
landowners which results from a reclamation project or water
pollution abatement project where written notice or public notice
of the proposed project was not provided.§22-27-6. Project sponsor liability limitation and exceptions.
(a) General rule. -- Except as specifically provided in
subsection (b) of this section, a project sponsor who provides equipment, materials or services at no cost or at cost for a
reclamation project or a water pollution abatement project:(1) Is immune from liability for any injury to or damage
suffered by a person which arises out of or occurs as a result of
the water pollution abatement facilities constructed or installed
during the water pollution abatement project;(2) Is immune from liability for any pollution emanating from
the water pollution abatement facilities constructed or installed
during the water pollution abatement project unless the person
affects an area that is hydrologically connected to the water
pollution abatement project work area and causes increased
pollution by activities which are unrelated to the implementation
of a water pollution abatement project, Provided that the project
sponsor implements, operates, and maintains the project in
accordance with the plans approved by the department;(3) Is immune from liability for the operation, maintenance
and repair of the water pollution abatement facilities constructed
or installed during the water pollution abatement project.(b) Exceptions. --(1) Nothing in this article shall limit in any way the
liability of a project sponsor which liability results from the
reclamation project or the water pollution abatement project and
which would otherwise exist:(A) For injury or damage resulting from the project sponsor's
acts or omissions which are reckless or constitute gross negligence or willful misconduct.(B) For the person's unlawful activities.(C) For damages to adjacent landowners or downstream riparian
landowners which result from a reclamation project or a water
pollution abatement project where written notice or public notice
of the proposed project was not provided.(2) Nothing in this article shall limit in any way the
liability of a person who the department has found to be in
violation of any other provision or provisions of this chapter.§22-27-7. Permits and zoning.Nothing in this article may be construed as waiving any
existing permit requirements or waiving any local zoning
requirements.§22-27-8. Relationship to federal and state programs.The provisions of this article shall not prevent the
department from enforcing requirements necessary or imposed by the
federal government as a condition to receiving or maintaining
program authorization, delegation, primacy or federal funds.§22-27-9. General permits.
If the department determines it will further the purposes of
this article, the department may issue a general permit for each
reclamation project or water pollution abatement project, which
shall:(1) Encompass all of the activities included in the
reclamation project or water pollution abatement project.(2) Be issued in place of any individual required stream
encroachment, earth disturbance or national pollution discharge
elimination system permits.§22-27-10. Exceptions.(a) General rule. -- Any person who under existing law shall
be or may become responsible to reclaim the land or treat or abate
the water pollution or any person who for consideration or who
receives some other benefit through a contract or any person who
through a consent order and agreement or is ordered to perform or
complete reclamation or treat or abate water pollution as well as
a surety which provided a bond for the site is not eligible nor may
receive the benefit of the protections and immunities available
under this article. (b) Projects near mining or coal refuse sites. -- This article
does not apply to a reclamation project or a water pollution
abatement project that is located adjacent to, hydrologically
connected to or in close proximity to a site permitted under
articles two, three or four of this chapter unless:(1) The reclamation project or water pollution abatement
project is submitted to the department in writing before the
project is started; and (2) The department finds:(A) The reclamation project or the water pollution abatement
project will not adversely affect the permittee's obligations under
the permit and the applicable law;(B) The activities on the project work area cannot be used by
the permittee to avoid the permittee's reclamation or water
pollution treatment or abatement obligations; and(3) The department issues a written notice of its findings and
the approval of the project. (c) Projects in lieu of civil or administrative penalties. --
This article shall not apply to a reclamation project or a water
pollution abatement project that is performed in lieu of paying
civil or administrative penalties.§22-27-11. Water supply replacement.A public or private water supply affected by contamination or
the diminution caused by the implementation of a reclamation
project or the implementation of a water pollution abatement
project shall be restored or replaced by the department with an
alternate source of water adequate in quantity and quality for the
purposes served by the water supply.§22-27-12. Rules.The department may propose legislative rules in accordance
with article three, chapter twenty-nine-a of this code as needed to
implement the provisions of this article.Note: The purpose of this bill is to encourage voluntary
reclamation of lands adversely affected my mining activities; these
voluntary reclamation projects are intended to reduce and abate
water pollution that results from these locations being
unreclaimed.

This bill was recommended by the Joint Judiciary Committee for introduction
and passage.